Is the Union Older Than the States?

by Joseph Stromberg

ANOTHER
EXERCISE IN ‘OLD TIMES THERE ARE NOT FORGOTTEN’?

I
suppose someone might reasonably ask the importance and relevance,
at this late date, of the above-named topic. Someone might also
ask what such an issue is doing in a column said to be mainly about
foreign policy and war. And "Someone," to quote Lonzo
and Oscar, would be right.

My
first defense is that politics is the continuation
of war by other means – to reverse Clausewitz’s dictum.
Politics is the low-intensity conflict which normally
takes place within boundaries already fixed by prior
conquest. States carry on wars against other states
and wage peace, so to speak, against their subjects.
The processes have a lot in common, which is why people
necessarily take an interest in politics, if only
in sheer self-defense.

My
second defense is that my question is the same one
that comes up at the founding – or more likely, sometime
after the founding – of any confederation, federation,
or alliance: Who, in the end, has the final say? It
is nicer when these things can be worked out by appeals
to precedent, documents, and so on, rather than by
force. Those about to enter the maw of the European
Union should sit up and take heed.

UNION-SAVERS’
GUILTY CONSCIENCE?

Evidently
some misgivings still arise about the nature of the
American union. Having "saved" it by force,
the unionists – or their spiritual descendants – become
unhappy when the moral and legal foundation of their
famous victory is called into doubt. That’s old hat,
they say, and has no meaning for us today. So Mr.
Garry Wills in his recent book denouncing the long-standing
American tradition of suspicion directed at government.
It may indeed be "academic" to go over this
ground, but the reaction of the neo-unionists when
anyone does so, suggests an uneasiness for which it
is hard to account. I don’t know why they don’t just
rest their case on the Right of Conquest. It worked
for William the Bastard and many other famous historical
figures.

Oh
wait! I do know why: we have a lot of idle talk and
a couple of public documents which go on a bit about
government by consent. As the Supremes admitted in
Texas v. White (1869), had the union not been older
than the states, Texas "must have become foreign,
and her citizens foreigners. This war must have
become a war for conquest and subjugation." (My
emphasis.) A close call, for sure.

A
CONSTITUTION SO LIVELY IT REWRITES ITSELF ANNUALLY

Fortunately,
we have a Living Constitution, which according to
those who speak for it from a High Place, can mean
anything they need it to mean. Texas v. White is just
one example of this linguistic turn. Once again I
claim the Nine Delphi as the founders of deconstructionism.

Even
so, it is amusing, sometimes, to try to get beyond
or behind the creative writing of the union-savers
and the Supremes to see what might be there. In this
endeavor, nothing beats an old historical piece by
Claude H. Van Tyne, "Sovereignty in the American
Revolution: An Historical Sketch."1
His method is refreshing. Having discovered inconvenient
facts, he presents them in unalloyed fashion, only
attempting to bury their significance in Hegelian
waffle at the end of his essay. He’s a very
honest Northerner, indeed. His contemporary successors
begin with Hegelian waffle and never let up.

Van
Tyne examines the record from the first Continental
Congress – before the outbreak of war with Britain
– through the ratification of the Articles of Confederation.
Nowhere does he find confirmation of the Wilson-Story-Lincoln
theory of a new, single people made up of the people
of the colonies in the aggregate. Instead, he finds
a rough and inconsistent pattern of cooperation between
thirteen revolutionary movements, coordinated loosely
in the Continental Congress.

Proponents
of the priority of the union make what they can of
the Declaration of Independence, although the phrase
"free and independent states" does not appear
to help their case. The colonies’ delegations awaited
instructions from home before voting for the declaration,
and New York waited a while longer. Much is also made
of Congress’s suggestion that the states organize
new governments, as if this was the order of
a superior power to lesser ones. Actually, several
had already established new governments under new
constitutions, effectively repudiating British authority
before the Declaration had been voted on. Van Tyne
writes: "but the advice cannot be twisted into
a sovereign command, for the thing is to be done ‘during
the continuance of the present dispute between Great
Britain and the colonies.’ A body regarding itself
as sovereign does not speak thus." 2

Van
Tyne notes as well that the colonies – now calling
themselves "states" – did in fact exercise
powers appropriate to sovereign states. The separate
military forces, the navies established by nine states,
separate state diplomatic activities, and so on demonstrate
this beyond contradiction.3
Virginia ratified the treaty of alliance with France
separately and carried on an extensive diplomatic
correspondence.

IS
IT TIME TO ‘REVISE’ THE ARTICLES OF CONFEDERATION?

I
have put together evidence for the separate sovereignty
of the states elsewhere and shall not go over all
that ground here.4 The
several states claimed their sovereignty under the
Articles of Confederation quite explicitly. The second
constitution – under which, allegedly, we still live
– is held by some to have abolished the sovereignty
of the states. Van Tyne admits, however, that power
was given the new government "with a grudging
hand" and "in so dubious a manner, that
men have disputed ever since as to whether a national
state actually did then come into existence."5

Fortunately,
in his view, the National Ideal only fully grasped
by exceptional Hegelian heroes like James Wilson,
Alexander Hamilton, and James Madison - the equals
of "men like Bismarck in Germany or Cavour in
Italy" – prevailed in time. Or was it by stealth?
Anyway, by creating a general government empowered
to reach individuals, the states "left themselves
nothing but the right of revolution."6

That’s
a bit gloomy, even for a Hegelian. But there is a
glimmer of hope, if anyone wants one. Mr. Lincoln,
the main-most union-saver himself, conceded that under
the amendment power three fourths of the states could
dissolve the union if it suited them to do so. He
only denied that states could, individually, depart
the fraternal bonds of the union. I think he was wrong
in this, but his little side comment is very interesting.

As
our European friends blithely march into the unknown
social-democratic whatever-it-is of the EU, perhaps
we could move in another direction. How about a convention
to revise the Articles of Confederation? The last
meeting of that kind exceeded its instructions. Look
what happened. The amendment power sits there, beckoning
to us with the moral force of a call to convene the
Estates General.

Joseph R. Stromberg has been writing for libertarian
publications since 1973, including The Individualist, Reason,
the Journal of
Libertarian Studies, Libertarian Review, and the Agorist
Quarterly, and is completing a set of essays on America's wars.
He was recently named the JoAnn B. Rothbard Historian in Residence at
the Ludwig von Mises Institute.
His column, "The Old Cause," appears alternating Fridays on
Antiwar.com.

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